Can you backdate a company's register of members?

Has anyone ever done this to show the correct historical position re share ownership?

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None of the leading share transfer cases, like in the link below, positively state that the company’s share register must be dated with the same date that it is physically written up (rather than the historic STF date) and it seems there should be instances where it should be backdated to correctly reflect the historic state of affairs e.g. re dividend entitlement and group relief claims etc. (if it isn't backdated then you need to resort to potentially messy nominee shareholder arguments to support the correct historic position). 

https://www.shareholderrights.co.uk/blogs/transferring-shares-not-simple...

In terms of backdating company documents generally, this is not per se obviously criminal re tax (or otherwise), as the link below shows that backdating dividends (re tax savings etc.) is merely to be discouraged re potential IP claims for potential irregularities with CA 2006 (and there is no suggestion at all of criminal illegality in the absence of dishonesty):

https://www.oliverelliot.co.uk/2013/11/06/directors-remuneration-beware-of-backdating-your-dividends-because/

Para 287 of this case helpful in showing that if the member’s register is rectified by the court to correct a mistake, then that would necessarily have to take effect retrospectively (so that the mistake was void ab initio):

https://www.bailii.org/ew/cases/EWHC/Ch/2020/1054.html

So that’s at least one example where a company’s share register can potentially be corrected retrospectively i.e. this shows that someone would have no reason to think such a thing was necessarily illegal or impossible (even if not done by the court).

The link below shows that minor mistakes can be corrected without going to court at least, so again it shows there is no reason to think this was necessarily illegal or impossible to do this without going to court:

https://www.tmf-group.com/en/news-insights/articles/2016/march/correcting-errors-member-register/

 

Replies (6)

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By ireallyshouldknowthisbut
12th May 2020 14:48

Eh?
A list of shareholders, is a list of shareholders.
The date of transfer is the date of transfer, no matter when written up (or submitted to HMRC as an annual confirmation statement)

Its no more "backdated" than filing a balance sheet dated 31st December 2019 on the 12th May 2020.

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Replying to ireallyshouldknowthisbut:
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By Justin Bryant
12th May 2020 16:55

Eh? If something is not dated with the actual date it is done (like changing a share register's membership details), it is necessarily backdated (assuming it is not post dated). For example, in law deeds cannot be backdated with a date prior to the date they are physically executed (signed).

Your B/S example is not really relevant to this point.

The date of the share register entry is important for many reasons, so this is a potentially important question. The point does not seem to be addressed in legislation or case law. If backdating is permissible (outside of a court order), this could be many years after the STF was executed (and any SD paid). Furthermore, if it's the STF date, then is it the date that is dated (which should not itself be backdated) or the date this is received back in the post from HMRC (assuming SD has been paid), since the share register cannot be validly updated before then. No-one seems to know!

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By Mr_awol
12th May 2020 17:14

The register isn't required to be dated with the date of the amendment/transfer update. It should be updated by the company but in fact this is often not done promptly. All the time it is out of date, the company may be committing an offence - but once it is brought up to date then all appears to be well. In the meantime, incorrect Returns may have been filed and I imagine this might be used by HMRC or others to contend that a transfer had not occurred or been formally registered. I don't think that affects the validity of the transfer however.
We took on a client where the shares had been transferred several years before a company sale, but it only got picked up when the sale was proceeding. The seller's accountants filed RP04s (second copies of documents previously filed) to 'correct' the last six or seven Annual Returns, and updated the register of members to reflect the position as it 'should' always have been.

Ultimately in this case the original transfer had not required stamping. I'm not sure what I would do in this position. I suppose if I had a stamped form (stamped at the time obviously) or had a copy of the original stock transfer form on file, and dividends had always been declared in the 'correct' shareholders names, I might be tempted to follow the RP04 route and deal with it as an administrative error. On the other hand, if a client suddenly 'remembered' that a transfer had occurred ages ago and asked me to help them recreate a stock transfer form and 'correct' the register then I'd tell them they were out of luck.

That said, we are probably edging into the field of corporate law, rather than accountancy. If this were a significant transaction for a client of mine, with any element of risk, I'd probably tell the client to take legal advice or approach a formation agent rather than try and deal with it myself. It does seem that there is a bit of flexibility in company secretarial compliance generally.

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Replying to Mr_awol:
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By Justin Bryant
20th May 2020 14:59

Thank you for agreeing this is not a straight forward question and although you state "The register isn't required to be dated with the date of the amendment/transfer update" I can see nothing intrinsically wrong in using that date as the correct date* and it's really just a question of whether there is any guidance anywhere on using an earlier date (of which there may be more than one to choose from per my above comments). I don't think there is any (if there is any guidance it is very well hidden) and I doubt any lawyer would know a definitive answer here.

* to backdate it is potentially tax evasion per: https://www.taxation.co.uk/articles/measures-available-to-hmrc-to-tackle...

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By Justin Bryant
27th Jul 2020 14:30

It also seems the beneficial ownership change date is also not straight forward to identify per 39 here:

https://www.bailii.org/ew/cases/EWHC/Ch/2020/1938.html

The above para also strongly suggests that the share registration date is the date it is physically done (as I suspected) and not (backdated) before.

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Replying to Justin Bryant:
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By Justin Bryant
13th Apr 2023 17:29

This supports this view. https://www.cgi.org.uk/knowledge/governance-and-compliance/features/tech....

Indeed it's obviously correct when you think about it; otherwise it would be easy to avoid late registration penalties (not that they're ever enforced of course).

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